中國司法體系的二元制建構——設立跨區域法院的理念基礎與路徑方向

Abstract

The relentless pursuit of justice is one of the main driving forces of human progress. Mankind has been pursuing justice and promoting justice. Justice is an important choice to achieve justice, and the judicial system is a powerful guarantee for justice. Therefore, fairness and justice are the soul and life of the court, and it is the value and decisive factor of the court. In recent years, the Supreme People’s Court has promoted many effective reforms in promoting judicial justice and achieving justice. After two decades of hard work, China has made substantial progress in reforming the trial method, withdrawing the right of death penalty review, and advancing judicial professionalism and accountability, which promoted the process of China's judicial modernization. However, the effectiveness of the existing judicial reform has not yet met the justice needs of the society. For example, the judicial dilemma caused by judicial localization has not made substantial progress for the time being. The biggest problem in the current judicial system is "localization of justice". Normally, "localization of justice" is regarded as local protectionism, the reason is the administrative regionalization of the judicial system. The Fourth Plenary Session of the Eighteenth Central Committee clearly stated that it is necessary to "break the interference of local protectionism with judicial adjudication power and ensure that the people's courts can exercise their judicial power in accordance with the law and independently." This reform strategy has become an important policy guide and theoretical basis for further advancing the institutional reform of courts and system setting reforms; and ensuring the unity of the rule of law, independent and fair justice; and the efficient exercise of judicial power.

Since the introduction of the interregional court reform strategy, relevant research and discussions have been very enthusiastic. From the perspective of breaking the localization and ensuring independence and fair, many researchers have put forward many reform paths with reference significance. However, the existing reform proposals do not face the difficulties in reality, the rational analysis is too empty, and the theoretical support for judicial reform is insufficient. On February 27, 2019, the Supreme People's Court issued the “Fifth Five Reform Outline”, which further proposed the establishment of a jurisdiction system that is properly separated from the regional division. This statement is slightly different from the “Fourth-five Reform Outline” but the reform spirit and value orientation is consistent, which provides confidence and theoretical basis for further reform. In view of this, this article will analyze the relationship between the attributes of judicial power and judicial value goals (justice, efficiency, cost, authority), and summarize the importance of courts across administrative divisions in the judicial system reform strategy. At the same time, combined with the current realities and the difficulties that hinder the reform, the design path of the cross-administrative division courts in line with the national conditions is sought. This article is divided into six chapters, including:

The first chapter is "Introduction". This chapter mainly explains the origin of China's judicial dual construction system, as well as the research purpose, theoretical research status, research significance and research methods. The Third Plenary Session of the Eighteenth Central Committee of the Party put forward: actively explore and establish a judicial system that is properly separated from administrative divisions. Since then, academic research on cross-administrative division courts has appeared in large numbers. However, the current academic research results are not yet a mature system. At the same time, the depth and breadth of the research are insufficient. There is no clear top-level design and specific supporting system specifications. In view of this, this article will use a variety of research methods such as empirical analysis, historical analysis, value analysis, comparative analysis, etc., with cross-administrative courts as the research theme to conduct a comprehensive and systematic study. This research can make up for the shortcomings of the current academic research system is not strong, and has important theoretical significance for China's judicial reform research.

The second chapter is "The Present Situation and Disadvantages of China's Unitary Judicial System". This chapter examines the historical inheritance and current status of the Chinese judicial system, and delves into the shortcomings of the unitary judicial system. China's current judicial system has been influenced and constrained by the inheritance of traditional Chinese justice, the results of reinventing judicial reforms in the late Qing Dynasty, the judicial system at the beginning of the red base regime, and the Soviet judicial system. At present, China has rebuilt and perfected the principles of judicial and judicial setting, and gradually formed a "four levels and two trials" model of the judicial system: with ordinary courts as the main path, with special courts as the secondary supplement; with geographical as the main setting, with interregional court is a secondary supplement. The main problem of the current judicial system is that the consistency of the jurisdiction and administrative divisions leads to the highly localized appointment and removal of judicial officials and the protection of departmental funds. Local administrative power's initiative to intervene and intervene in justice inevitably brings about "localization of justice", which harms the independent and impartial exercise of judicial power.

The third chapter is "Analysis of the Value Advantages of China's Dual Judicial System". This chapter is mainly based on value analysis to study the advantages of China's dual judicial system.In view of the drawbacks of China's current one-dimensional judicial system, such as the erosion of judicial impartiality and judicial independence by the localization of the judiciary, the dual judicial system forms two parallel systems of local courts and national courts within the unified scope of the highest judicial jurisdiction. More conducive to expelling the drawbacks of the judicial localization, the applicable law, optimizing the allocation of the unified judicial resources, strengthening power supervision and restraint, the traditional legal culture, to promote judicial justice, enhance the judicial authority, improve judicial efficiency, justice and judicial civilization is of great significance to implement system, further reform and optimization of a yuan of judicial system, the value of has obvious advantages.

The fourth chapter is "Experience and Reference of Foreign Judicial System". This chapter provides a reference and inspiration for the reform of the interregional courts in China by summarizing the construction of foreign judicial systems. This chapter examines the construction of the judicial systems in six countries: the United Kingdom, the United States, France, Germany, Japan, and Russia. It can be found that whether it is a federal system or a unitary system, whether it is an Anglo-American legal system or a civil law country, its judicial setting has a common feature: the judicial power and the administrative power are treated as two different powers. At the same time, it prevents the erosion of administrative power to judicial power. The main method to realize this idea is to separate the judicial region from the administrative region. The setting of jurisdictions is completely independent of the setting of administrative regions, and this method is used to overcome the interference of local administrative power with judicial power. At the same time, the judicial systems of foreign countries are mostly the federal and local dual systems, or the dual systems of ordinary courts and special courts, and even multiple judicial systems. The dual system gives full play to the respective advantages and enthusiasm of the central and local governments in terms of power checks and balances and the unification of legal systems. These experiences are worthy of reference for China.

The fifth chapter is "The Realistic Path for China's Dual Judicial System". On the basis of summarizing the practical experience and practical problems of the trial reform of interregional courts in China, this chapter puts forward the practical path for China to build a dual judicial system. Under the concept of judicial ownership of state affairs and sharing with local authorities, two separate court systems are constructed: a cross-regional court system and a local court system. Special cases, cases that affect the unification of the national legal system, and interregional cases are all under the jurisdiction of the national court system. Common cases are under the jurisdiction of the local court system. Considering the problems of power balances, the efficiency of implementation, and the cost of reform, there is no need to make too many changes to the judicial system, and we must make full use of the existing judicial structure to build a new dual judicial system. The railway court is a ready resource for reform. As a special court nationwide, the railway court has initially established the prototype of a cross-regional court in its setting system, regional distribution, and jurisdiction. Based on the railway court, it is practical and feasible to promote the reform of the dual court system.

The title of Chapter six is "Specific Conception of the Establishment of Chinese Dual Judicial Justice". This chapter intends to construct the specific content of China's dual judicial system. The key to interregional court reform is the feasibility and rationality of its system design. Chapter six try to build a specific framework for interregional court reform, including: legal basis, legal status, determination of jurisdiction, relationship with people's congresses and localities, internal de-administration, etc. At the same time, this chapter will provide solutions to many issues that have plagued the reform of the current courts, laying a solid foundation for the establishment of a dual judicial system.

Date of Award	2 Nov 2021
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Feng LIN (Supervisor)